The Better Chancery Practice Blog

In case you need a reminder that statutory appeals require that you follow the letter of the law in every particular, or suffer dismissal, the case of Lamberth v. S. Panola School District will serve the purpose quite nicely.

Joseph Eugene Lamberth was terminated from his Assistant Principal job with the South Panola School District on February 4, 2014. He appealed to chancery court per MCA 37-9-113(1)-(2), by filing a petition. He did not post a bond, however. The school district filed a motion to dismiss for failure to post the bond. Lamberth responded that he did not know of the requirement to file a bond. The chancellor dismissed the appeal, and Lamberth appealed the dismissal.

In a decision handed down February 16, 2016, the COA affirmed. Judge Ishee spelled out the reasoning:

¶5. The grant or denial of a motion to dismiss is reviewed de novo. Breland v. Harrison Cty. Sch. Bd., 96 So. 3d 61, 64 (¶9) (Miss. Ct. App. 2012) (citations omitted). The applicable statute for appeals of school-board actions states the following:

(1) Any employee aggrieved by a final decision of the school board is entitled to judicial review thereof, as hereinafter provided.

(2) An appeal may be taken by such employee to the chancery court of the judicial district in which the school district is located, by filing a petition with the clerk of that court and executing and filing bond payable to the school board with sufficient sureties, in the penalty of not less that (t)wo (h)undred (d)ollars ($200.00), conditioned upon the payment of all of the costs of appeal, within twenty (20) days of the receipt of the final decision of the board.

Miss. Code Ann. § 37-9-113(1)-(2) (Rev. 2013).

¶6. As seen above, the statute clearly outlines the need for the filing of a $200 “bond payable to the school board with sufficient sureties.” Id. We have previously addressed this exact issue of whether the failure of a movant to file the $200 bond warranted dismissal of the appeal. In Breland, we held: “Breland’s failure to file a timely bond is jurisdictional and is fatal to her appeal. This Court repeatedly has held that statutory appeal bonds are jurisdictional – that is, they relate to a court’s appellate jurisdiction.” Breland, 96 So. 3d at 65-66 (¶12) (quoting 5K Farms Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221, 227 (¶23) (Miss. 2012)). That said, the Mississippi Supreme Court “has recognized that a failure to meet the statutory requirements (of a bond) may be excused by extenuating circumstances.” Miss. State Pers. Bd. v. Armstrong, 454 So. 2d 912, 915 (Miss. 1984) (citations omitted). However, as was the case in Armstrong, we fail to find any extenuating circumstances that would warrant overlooking Lamberth’s failure to pay the statutorily required bond. Lamberth’s excuse is merely that he was not aware that a bond needed to be filed, despite the distinct and unambiguous statutory language requiring the bond payment. Citing a long-held tenet of law, we remind Lamberth that “ignorance of the law excuses no one.” Hoskins v. Howard, 214 Miss. 481, 497, 59 So. 2d 263, 269 (1952). Hence, the chancery court properly dismissed Lamberth’s appeal due to lack of jurisdiction, and we affirm the dismissal.

The COA went on to reject Mr. Lamberth’s challenge to the trial court’s dismissal with prejudice.

A few points:

• If you’re going to take on representation of someone in a statutory appeal case, a good starting point is to read the statute. Let me reiterate that: read the statute. Everything you need to know to represent your client is there: the court with jurisdiction; the time limit to appeal; what you need to do (e.g., file a bond) to perfect your appeal; the basis for an appeal; and anything else pertinent to your representation is right there. And while you have your nose stuck in the book, peruse the annotations.
• My ancient Seventh New Collegiate Dictionary defines “extenuate” as “to lessen or try to lessen the seriousness or extent by making partial excuses: mitigate.” If you’re going to claim extenuating circumstances, try to make sure that they have some substance, unlike that offered by Mr. Lamberth.
• It’s nice to have a case citation to go along with the old “ignorance of the law is no excuse” saw. I have a feeling I may find a use for that case somewhere along the line.

MCA 93-5-1 (Sixth) provides for a divorce on the ground of “Habitual and excessive use of opium, morphine or other like drug.” The burden of proof is clear and convincing evidence.

Brian Booker charged his wife, Amy, with habitual and excessive user of drugs in his divorce complaint. In 2011, following gastric-bypass, gallbladder, and multiple kidney-stone surgeries, along with esophageal stretching, Amy was prescribed Lortab for pain. Brian charged that her use was excessive.

The evidence showed that there were episodes where Amy became impaired while taking the medication. She ran up credit card debt. Her mother testified that she was addicted to the drug. Family members testified that they locked the meds in a closet; when Amy found the key she suffered either an overdose or seizure and checked into a rehab facility where she stayed only one night. She got a DUI, suffered a seizure during the stop and had to be taken to a hospital, and had no recollection of the event.

Amy denied being abusing or impaired by the drug, and some of her family members backed up her testimony. There was no medical or pharmaceutical testimony, and nothing in the record established that she had been diagnosed with addiction. There was no evidence that Amy was over-prescribed medications.

The chancellor found that Brian had failed to meet his burden of proof, and that Amy had proven that her use of the drug was based on valid prescriptions. He dismissed Brian’s complaint, and Brian appealed.

In Booker v. Booker, decided March 8, 2016, the COA affirmed. Judge Griffis laid out what is required to make a case on the Sixth Ground for divorce:

¶6. To prove the ground of habitual and excessive use of opium, morphine, or other like drugs, the supreme court has held:

A complainant must prove (1) that the guilty spouse’s use of drugs was habitual in that it was customarily and frequently indulged; (2) that the guilty spouse’s drug use was so excessive that [s]he did not have the ability to control h[er] appetite for drugs; and, (3) that the drugs used were morphine or opium or comparable . . . in effect.

Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss. 1983); see also Miss. Code Ann. § 93-5-1.

¶7. In Ladner, the court ruled that the “habitual” use of drugs “requires more than an occasional indulgence in drugs.” Ladner, 436 So. 2d at 1373. Rather, “the complainant [must] show that the defendant customarily and frequently uses drugs.” Id. The use of drugs must not only be “habitual” but also “excessive.” Id. at 1374. This element “requires an abuse of drugs.” Id. The supreme court has ruled:

[T]he guilty spouse must be so addicted to the use of drugs that [s]he cannot control h[er] appetite for drugs whenever the opportunity to obtain drugs is present. However, we consider it a justifiable excuse for such behavior where . . . the defendant is prescribed such drugs by a physician for legitimate reasons.

Id.

¶8. The Ladner court explained the “excessive” element through analysis of Rindlaub v. Rindlaub, 125 N.W. 479 (N.D. 1910). There, a wife sought a divorce from her husband on the ground of his drug use. Though the husband’s use was habitual, the court denied the divorce and found that because the drugs were taken to alleviate pain caused by health problems, “such a habit [was] reasonably and necessarily caused by conditions over which the victim had no control . . . .” Ladner, 436 So. 2d at 1374 (citing Rindlaub, 125 N.W. at 496).

¶9. Prescription-drug use was the issue in Ladner. “The testimony showed that Mr. Ladner was not truthful with his medical doctors concerning his frequency of use and dependency on these drugs. He exceeded the prescribed dosages.” Id. at 1369. Ladner’s pharmacist also testified about the prescriptions that he filled. Id. at 1373.

¶10. In Lawson v. Lawson, 821 So. 2d 142, 145 (¶14) (Miss. Ct. App. 2002), this Court affirmed a divorce on the ground of habitual and excessive use of drugs. The Court ruled that the chancellor’s decision was based on evidence that the wife obtained drugs through “over-prescription by medical personnel” and by “simultaneously seeking treatment from multiple physicians, without sharing the fact that she was seeing and obtaining prescriptions from all of them.” Id. at (¶13). Professor Deborah Bell in her treatise, cites Lawson for the proposition that “[h]abitual use of drugs as prescribed is not grounds for divorce even if the defendant becomes dependent on the drugs. But divorce may be granted when a spouse’s initial, legitimate use of prescription drugs becomes misuse.” Deborah H. Bell, Bell on Mississippi Family Law § 4.02(7)(c) (2011). Thus, when we consider “excessive” we must include in the definition the “misuse” of prescription drugs.

¶11. Here, within this definition, Brian must prove that Amy’s use of Lortab and similar pain medications was “excessive.” The chancellor found that it was not. And the chancellor ruled that “[Brian’s] proof showed without question that in every instance of her use of Lortab, the medication had been prescribed by a doctor for her very legitimate health problems.”

The court went on to examine the trial judge’s rationale, and affirmed the conclusion that Brian had failed to meet his burden of proof.

This case is a reminder of several points: (1) if you do not meet your burden of proof, your client will be denied a divorce; (2) the burden of proof for every ground for divorce except HCIT is clear and convincing evidence; (3) this Sixth ground has three important elements, each of which must be proven by clear and convincing evidence, and if you fail on one, you fail on all.

Up for comment at this link are some new rules proposed to redefine the practice of law in Mississippi vis a vis unauthorized practice and “interloping” by lawyers from other states. Your comments are welcome through March 28, 2016.

One salutary goal is to clarify who may come into Mississippi from other states to handle legal matters here, including litigation, arbitrations, mediations, etc., and the myriad other transactions that have lawyers flitting from state to state, and dipping into our jurisdiction.

An important provision, as I see it, is Section 2(f), which reiterates longstanding Mississippi law that preparation of agreements, contracts, pleadings, deeds, and the like does constitute the practice of law. The obvious reason is that selection of the proper documents, their terms, and when and how to use them require legal judgment and analysis beyond the skill level conferred by Google searches.

We all have seen far too many dreadful computer-generated pleadings and documents that people purchase online from papermills. Likewise, it seems that every county has one or several backwoods, shadowy characters who, for a “modest” fee, will prepare the paperwork parties need to file ID divorces and simple matters. In most cases, the likelihood of damage is small, but there are no ethical bounds on those document-preparers, and there is always the possibility that some legal issue with later, larger ramifications, will go overlooked.

Whether these changes will do the job remains to be seen. It seems to be an elusive problem.

The MSSC is seeking comments on a proposal to amend MRCP 81 to clarify it, and moving its process provisions to R4.

You can access the proposed changes at this link.

These changes were recommended by the Conference of Chancery Judges in 2013, and then analyzed and studied by the MSSC’s Civil Rules Advisory Committee, which passed them on to the MSSC, which has been considering them since.

If you have any comments, pro or con, it will help the process if you will follow the instructions at the link. Deadline is April 1, 2016.

After the  legislature made it legal a couple of years ago to carry firearms in courthouses, except for courtrooms, some judges reacted by extending the protection of the courtroom out into external areas.

Now the legislature is responding with an amendment to HB 571, which has passed the House and is on the way to the Senate. It limits the definition of courtroom to ” … the actual room in which a judicial proceeding occurs, including any jury room, witness room, judge’s chamber, office housing the judge’s staff, or similar room” The law specifically allows firearms in ” … hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding.”

If you agree this is good policy, then you may do nothing and see whether the Senate concurs.

If, however, you wonder what effect this will have on the safety of litigants involved in heated domestic matters who have to wait their turn in the hallways and corridors of our outdated and crowded courthouses, then you might consider contacting your Senator(s).